tv Q A CSPAN July 30, 2012 6:00am-7:00am EDT
said i will give you the job but you can't tell my clerks. i had to go out and he to not fumble for the nextçú?dyi hours before my plane left. i hear that six months later, clerks came in and said justice you need to hire your fourth clerk. he said i did hire my fourth clerk. they were outraged that he would have hired someone who was not
of the party. >> true story. if he said so. it did not make as much an impression upon me as it did upon him. >> how many clerks have you had? >> 4 times 26 on the supreme court and on the court of appeal, 5 times 3. >> the real issue here, is how often you hired a clerk that doesn't think like you do? >> infrequently but not never. the problem is, i don't care what the policy preferences of the clerk are. in fact, other things being equal, i would prefer a clerk who's instincts, who's policy instincts are the opposite of mine. but, i find it very hard to find a liberal clerk who is hard- minded and not wishy wash -- washy who applies rules of law. that's not what i do and i don't want my clerks to do that. when i have been able to find a flint-minded liberal, as in the law clerk you just saw, they have been invaluable because, you know, they come with the problems, maybe from the opposite social perspective that i do. they are checked upon what a judge always have to worry most about and that is that instead of applying the law, he's really
just applying his own wishes. that's bad judging. >> when i earlier read that line about every lawyer and every citizen concern about having -- the reason i bring that up, you look at frank easterbrook is greg easterbrook. >> i known frank a long time. we were colleagues on the faculty at the university of chicago in the 1980s. he went on to the chief judge on the 7th circuit ultimately. he wrote the forward because if there is one other name, one other judicial name associated with the two principle theories of this book, textualism and originalism, it is frank easterbrook. if i had to pick somebody to replace me on the supreme court, it would be frank. he and i tend to see things the same because we're both applying the same principles of textualism and originalism. >> political scientist editorial page writers and cynics often pick judges do nothing other than writing their preferences into law. >> yes. that's certainly true. >> political scientists editorial pages writers. what do you think of editorial page writers? you read them? >> they have to sell newspapers. they tend to judge judges incorrectly as i told you earlier. i doubt whether they read the opinion carefully and see what sections of the statute are involved. they haven't gotten reaction. this is a terrible result. well, sometimes it's a terrible result because that's the terrible statute that congress wrote and the rule for a judge
ought to be garbage in and garbage out. our duty-bound to produce in the name of result. lot of those editorials are just knee-jerk opposition to the consequence. not a dispassionate, intelligent assessment of the process of interpretation that the judge went through. >> one of the prior justices supreme court -- >> listen i have to add to if an editorial writer or even an article writer did what i just recommended, went through and described to the reading public, oh, the case consisted of this section, 323i, if he went through that, he would lose his readership in no time.
i am not at all surprised that the newspapers tend to evaluate a case simply on the basis of whether the result seems like a good result or not. we'll know if the reader is interested. the reader is not interested in the rest that stuff. >> i'm going to ask you into something along those lines, we prepared for this interview. your people at the publishing house told us there are all kinds of rules and things we couldn't ask you about. >> you can ask me anything you want but i just won't answer. >> four years ago, we did the interview and we talked about bush v. gore. let me show you some video from a interview you did with pierce morgan. i want you show you this clip. let me just show you this.
>> i guess the ways disagreement was bush v. gore. that comes up all the time one usual response is get over it. >> you went on to explain further on that and we did it four years ago. >> did they tell you -- i didn't know that was -- >> we're used to that. we get that all the time. >> i don't mind -- ask me about bush versus gore. >> judges have tenure for life. why does everybody worry about
things they say in public and not having cameras in the room and all of that stuff? what are you so sensitive about that? >> i'm sensitive about it because judges ought to express their views on the law in their opinions. everything i had to say about the real legal issues in bush versus gore was set forth in the opinion that i joined. beyond that, i'm just either repeating myself or adding things that really were not basis for my decision. i also don't like drawing the courts into the political storm by having their opinions repeatedly pawed over especially the controversial ones.
>> why not though? that's democracy isn't it? >> well, i don't mind the people pawing over them between themselves. but i don't think it's the role of the judge to give an account of himself to the people. it's the tradition of common law judges not to comply to press or criticism. i can't tell you how many times wonderful letters i win to the washington post just for my own satisfaction and ripped up and throw them away. >> you don't send them? >> don't send them. you do not respond to criticism. why is that? it's because what the judge has to say is in the judges opinion. >> your biographer, talked about you.
here's jone talking about you at the end of this last term. >> at the end of his first term, in 1987, nine minutes of him complaining about where the court had gone in the independent counsel statute. he does have one just about every term. they are always vintage. it was interesting though the idea that he would go outside the record and complain about president obama's order on young people who had been brought here with their parents illegally and are undocumented and he did get a lot of really negative press on it. in fact, couple people suggested he should step down. frankly, i think he will still do what he does. >> she's right into that. >> you will be doing what you do.
>> that's just going outside of the record stuff. in normal cases which we site newspaper articles, there's no rule that you cannot site any public materials in opinions. only site the record. if it's a factual matter that is up for decision, of course you can only use the matter set forth in the record to determine the facts. but that's not the purpose i used to do at all. we iced the public records all the time. the point i was making there had nothing to do with at factual determination. to see whether my use of that so-called nonrecord material was proper or not. >> were you surprised at the reaction after you mentioned president obama in your remarks on the last decision on the
arizona decision? when e.j. dion said you ought to resign? >> who? >> the columnist for the washington -- >> i don't know that. i was surprised anyone would have thought the purpose for which i used the president's statement and did not criticize the president's statement. in fact, i said it might be right but the only point i made from it was -- the attorney general argued before us that the only reason the government wasn't enforcing the immigration laws more rigorously was enforcement priorities. it didn't have enough money and it had to decide who goes first and what not. the point i made was well, even if that was true in my view, a sovereign state ought to be able to supplement the
inadequate enforcement with its own fronts if it wants to. then i added, moreover, it has sense come to life that the problem is not over inadequate enforcement funds but rather simply the unwillingness perhaps for good reasons, of the government to enforce the law. for that purpose, i cited the president's statement. which seem to me perfectly fair. i did not say the president's statement was wrong, i said what the attorney general had told us concerning enforcement priorities as the public shows not the sole problem. >> i'm going to go back to your book page 356 and read you a sentence and have you explain it to we nonlawyers.
i knew you were going to do that. >> that's fair. >> the teachers will never forgive me. all right. textualist should object to being called strict constructionists. whether they know it or not, that is an irretrieverrable pejorativist. is that correct? >> i think -- people tell me that pejorative. >> whether they know it or not, i just read it, as it ought to be strict constructionism as opposed to fair reading contextualism is not a document to be taken seriously. you compare it laying handsen a priest. would you like to explain that?
>> the word is used to mean violent attack upon the priest. the first amendment, for example if you are a strict constructionist, you would say that the first amendment does not prohibit congress from censoring handwritten letters because after all, it only protects freedom of speech and of the press. handwritten letters of the speech and press. of course that's not the understood meaning of the first amendment. it protects freedom of expression and those two were the most common modes. >> can you give us a layman's term of definition of textualist?
>> it is someone who believes that the meaning of statue is to be derived exclusively from the text enacted by congress and signed by the president or else repassed over his veto. the text is the sole source that the judge ought to be using in making his judgment. >> the last part of this book is 13 thoughts to be exposed. the first one is the false notion that the spirit of a statute should prevail over its letter. are you exposing this falsely, is this your idea or is this taught in law school? >> it is said in some supreme
court opinions. sometimes the letter of the law is contrary to its spirit and spirit must prevail. that's nonsense. the letter of the law is the letter of the law. that's what we're governed by. we're not governed by some judicial determination of spirit, which could be anything. ut the statement comes up often. it is an empowerment of judges. judges can simply say, oh yes, the text can say that but that's contrary to the spirit of the law but we will do whatever we like. that's not democratic self- government if people can't have their representatives write a statue, which is to be applied as written. >> the 60s of your headings. what do you call those? >> numbers.
>> okay, touche. it's got all kinds of things on this page i want to ask you about. the false notion that words should be strictly construed. that's the 60 seconds. >> right. you don't want to construe strictly, you want to construe it reasonably. you don't want to construe it sloppily. what would the ordinary reader of english interpret this statement to mean? unless it's obviously being used in a technical sense. there are some technical expressions in various areas of the law. >> the other thing i want to ask you about, one of them you mentioned -- one of the justices often in the book, joseph story. he had seven children.
>> it's pretty good. >> you've had -- >> ipad 9. -- i have had nine. >> last time you had 28 grandchildren and i ask you to name them all. you were offended by that. did you bring the list with you? >> you give me enough time, i'll come up with all of them. >> the joseph story, years ago back in the 1800s, he was there 33 years. why so much of him in the book? what do you think of him? >> he was one of the greats. he wrotes the first commentary on the constitution of the united states. while he was a sitting justice. he was professor at harvard law school. a great intellectual. maybe the reading intellectuals on the early doubt.
úyío>> he taught school. published books the whole time. >> absolutely. judges, have always been part of the intellectual life of the country. unlike in europe where judges are sort of bureaucrats in the ordinary courts, but at least in the more important courts, judges in our common law system have always been part of the intellectual discourse. even in the court of appeals level. people like henry friendly. >> we had you in 2006, we had our cameras in front of you.
>> that's not true. unless you believe that every statue ever written produces a sensible result. but you know, the ideal rule for the honest judge is bar garbage in bar -- garbage. it's not up to you to decide the garbage. you should be more basically to either praise or criticize judges just because you like@alw the outcome or dislike the outcome >> i remember that earlier, you said garbage in and garbage out. you said colorful things over the years. do you know that when you're on the bench when you do that? is that something you do on purpose? >> i don't do it much on the bench. i do it in my opinion sometimes. it makes the opinion more readable and lively, which is a good thing. especially dissents. there's no reason to read a
dissent because the dissent is a losing side. you read majority opinion. you write the dissents. i write them mainly for the law students because the dissent will be published in our system. the law professors even when they disagree with the dissent have to present both sides of the case so there can be lively discussions in the case. i publish my dissent. i like to make the dissent clear and readable and interesting and even funny some times. >> how much impact you had on the oral arguments? >> when i first came on the court, very few questions were asked. i argued before the court once before i became a judge.
i got only two questions. i think it was two, maybe three, all of them from byron write. in the whole time i argued. nowadays, wow, the whole process consists of responding to questions from the court. i think the ladder is better. >> did you start it? >> i was the first one who mof questions, i guess. that was probably my law school background, my law professor background. then when law professors came on the court, they continued the same roof. bader ginsburg another law professor. >> here is an oral argument from 1999. you're asking the question, the other voice you hear is someone who is making a presentation
before the court. >> unless it is itself, a recipient of federal financial assistance it is not covered by title ix. >> i don't quite see how the university get stuck here. as far as the university is concerned, it pursuant to the rules has denied a waiver in circumstances where denial would be perfectly appropriate. as far as what the university has done, the university hasn't discriminated at all. >> if the university -- if the only thing that makes the denial of the waiver bad is the other organization has granted waivers in other universities in other context. how do you pin this on the university? >> because the university is the covered program that is operating. >> do you recognize that? go don't recognize that.
>> how often is that? before the court. paul steps up and in the hector case. >> he's a former solicitor general. former solicitor generals are part what you might call the supreme court bar, the regularly appearing supreme court bar. >> as you know after the healthcare case, and chief justice roberts position on it, a lot of copy right about the personal antagonism. about your perception. was there a leak that came out of the story on that one?
>> i wouldn't. >> you wouldn't what? >> i wouldn't talk about it. >> you did though. you said -- >> i responded to a very precise question whether they were slamming doorser what not. that's absolute nonsense. >> are there personal feelings? >> i don't want to talk about it. >> let me do this. the answer you were talking about earlier what you write in your opinions. has there ever been this your past where you make some strong statements personal fallout from that? >> i criticized the opinions of some of my colleagues and we have remained friends just as they have criticized my opinions and we have remained friends. it's kind of a job if you can't disagree vehemently on the law. you want to find another job.
that's it. >> done. >> why do you some times have -- anybody that knows, knows you are a jolly fellow. why do you take such an intense when you're dealing with a subject, you look like you're mad? >> with what subject? >> this whole business of the law. you look like you're -- >> i should look mad. i look jolly when talking about a very serious heart felt issue. one in which what you used to be -- the stuff we set forth in this book is orthodoxy. it was the traditional approach to judging until about the middle of the 20th century. we were trying to bring that back. it's a very significant issue of how judges go about giving
effect to democratically enacted legislation and to the democratically ratified constitution. that's a terribly important matter. smile and look jolly when i'm talking about that? i don't know. i think i should look impassioned when i talk about it because i do care passionately about it. i'm not angry. >> what makes you mad? dealing with the law and dealing with the court and dealing with lawyers that come before you, the issues and the press. >> well, the press gets -- if you read it, it gets under your skin. i don't much read it but, you get used to it. you get used to the fact that you can't respond. we don't respond. so effectively, they can say
whatever they want. say whatever you like. we're not going to respond to it. re7u$!>> near the end of your b, you write however, living constitutionalist, read prohibition into the death penalty of the constitution. four supreme court justices searched during the tenure of your traditional co-author, all flexibility is at an end. it would there have to be no use of america to the death penalty just -- you stepped on two big issues there. >> what you talking about there is the other big theoretical issue raised by the book. one is textualism and we talked about that. the second is originalism. what that says is the text ought to be given the meaning it had when it was adopted or when it was ratified in the case of the constitution.
thus, the words unusual punishment in the 8th amendment should be given the meaning. they were understood to have by the american people who ratified it. it was clear that when that 8th amendment was ratified, the death penalty was not considered to be prohibited. indeed, the death penalty existed in all the states and was the only penalty for a felony. for somebody today to say somehow the american people have prohibited the states by ratifying the constitution, they have prohibited the states from applying the death penalty, i don't know where this comes from. the american people never voted for any such thing. that's what originalism is. what did this mean when the american people ratified it. now there are some -- the death penalty was a phenomenon that existed at the time.
there were other phenomenons that existed at the time and those you can't say what the original meaning. when the electric chair comes in you have to decide whether that was unusual punishment. your starting point, your base your startinhat you comparease these later phenomenons is what was approved at the time the 8th amendment was ratified. so, if the electric chair is less cruel, than hanging, it's not prohibited by the 8th amendment. likewise death by injection which is even less cool than the electric chair and certainly less cool than hanging. >> here is another one of your 13 falsely exposed. by the way, who wrote that headline?
>> that was your name sake, spelled differently brought in. the co-author brian garner. >> who's at smu? >> its probably the far most lexicographer of law. i respect scholar. he has his own company called law pros, lectureses about the country on writing briefs and on oral argument. >> i have to read the last line here of this bio, he's also a distinguished research professor of law. >> he's an adjunct. i don't think he's a full time faculty. >> here is one of the falsely exposed.
>> in 1791 when the bill of rights of ratified, i can do that just as i can decide patent cases. i listen to each side. that's what the adversarial system is all about. just as i can decide a patent case by -- in fact, it's even easy forker me to evaluate historical evidence than patent evidence. judges do this all the time. it's the counsel who has to be expert or who have to know where the point the judges for expert advice. i don't see why judges cannot
do history. they have to do history all the time. >> you write, there is no historical support what ever for the proposition that any provision in the constitution guaranteed a right to abortion, or to sodomy or assisted suicide. these acts were criminal in all states for two centuries. >> if you're an originalist, it's a silly question to answer whether it's unconstitutional to prohibit them. it obviously wasn't when wherever provision of the constitution relying on was adopted. doesn't mean you have to prohibit them just as it doesn't mean you have to have the death penalty. these are political questions for the american people to decide. that's what democracy is about. you think abortion should not be prohibited? fine, persuade your fellow citizens. pass a law.
you think the opposite, persuade them the other way but don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't and it's the same for those other issues. death penalty, abortion, sodomy, whatever. persuade your fellow citizens and go either way. >> another historical figure that you quote a lot in your book is jeremy bentham. who is he? >> he's an english law professor who has a lot about the law. >> why should you follow him? >> she's he's a smart fella. so is aristotle. he also was highly respected by the frame use of our constitution and has been
influential on legal theory ever since. >> i remember you disagreeing on a public forum we covered about citing foreign law and then you mentioned a lot of foreign experts. lot of british of course get a lot of our law. >> i don't consider english law foreign law. english law, to the extent, it informs the meaning of the constitution. for example, what is due process of law mean? that phrase in the constitution. abstract, it could mean anything. it means something different to a 12th century frenchman than it does to a 16th century hawaiian. that's why english law is very relevant to our cotitution and to american law.
french law is not. italian law is not. >> you're an italian? >> i'm an american but italian dissent. >> my mother was born of an italian immigrant family. >> here's another thing i want you to discuss. these are your words. how did you both write this? who wrote what? >> you know, if my life depended on telling you, some passages, i recall are mine. some are recall are his. most of them they have become so melded. he worked on mine and i worked on his. >> how did you do it physically? he's not here in town. >> he told me, let's divy these accounts of interpretation and you work on this and i will work on the other one. we did that, i sent him my take
on the ones i was assigned and he sent me his on the ones he was assigned. we went back and forth. this thing took 3. 5 years to do. >> this probably isn't the fair way to say it. you are a notorious word nitpicker? >> he's as bad as i am. he's a snoot. probably worse. >> you ever come to blows >> no. he knows stuff about words. for example, one time i complained bryan, people always refer to it as duct tape. it's not duck tape, it's duct tape with a "t." he would say that's wrong. it was originally devised for the military. i think he said our color and it was called duct tape.
only later did it come to be used for air-conditioning. who would want to have that information? only a word nut. bryan is a word nut. >> he got you though? >> he got me. >> let me read this to you. the modern congress sails close to the wind all the time. federal statues today often all but acknowledge their questionable constitutionality with provisions for accelerated traditional review for standing on the part of the members of congress and even for fallback disposition should the primary disposition be held unconstitutional? >> right. >> i want to go back to that original statement. the modern congress sails close to the wind all the time. >> that followed upon our statement that traditionally, congress is -- you assume the constitutionality of any statute that congress enacts
because it assumes that congress would not indeed, if there is even constitutional doubt, you give the congress the benefit of the doubt. in recent years, however, it's more questionable whether congress is really even thinking about the constitutionality and that passage recites the fact that this is evident from the content of their statute. who would have ever thought in the 19th century for example, that congress would pass a statute that says in the event the stuff we just said is unconstitutional, we have this other provision instead. which is which congress has done. makes you wonder, are they really sure this stuff is constitutional? have they really thought about it? i think that comment was also made in response to the charge of, traditional activism, which
is a word that doesn't mean anything really. it just means that the person who uses it doesn't agree with the decision. what is judicial activism? it is certainly not doing actively what judges ought to do. is that judicial activism? i think not. >> number 44, artificial person cannon. >> right. >> now, i wrote down beside that, citizen's united. that's another one that's created a storm. >> congress shall make no law of bridging of freedom of speech. >> maybe you don't want to touch this, as a person, do you worry at all -- i know you don't -- do you worry at all there's
too much money in politics? >> you know i really don't. i forget what the figures are. i think we spend less on our presidential campaigns each year when there's a presidential election than the country spends on cosmetics. >> what about that the unusual influence? people are worried that the corporations now can buy -- >> i think this is a real -- if you believe that, we ought to go back to monarchy that people are such sheep that they just swallow whatever they see on television or read in the newspapers. the premise of democracy is that people are intelligent and can discern the truth from the false. at least when as theñg campaign laws require, you know who is speaking. you can't speak anonymously.
you have to say, you know, identify the people that -- >> but we don't know who's speaking right now. >> you know the organization is speaking. >> not necessarily. you know they don't have to -- some of the way the money is being raised we will know. >> you will never know who is contributing with the organization is speaking? >> that's all you need to know? >> well, the press can find out who's hiding behind what. that's not hard -- anyway, the premise is freedom of speech. the more speech the better. i cannot understand why -- as far as citizen's united, it was not novel. it reversed an opinion eight years earlier that had changed the law from what the law had been in buckley versus filalo.
>> all right, we're out of time. i'm going to ask you on camera but i will do it now. television in the court. >> television in the court. >> the reason i bring it up is that congress has has resolutions they never passed and ordered courts on division. why are you so against it? >> when i first joined the court i was for it and switched. aim against it because i do not believe as the proponents of division in the court assert that the purpose of televising our hearing will be to educate the american people. that's not what it will end up doing. if i really thought it would educate the american people, i would be all for it.
if the american people sat down and watched our proceedings gavel to gavel, they will never again ask. you know, justice scalia why do you have to be a lawyer to be on supreme court. if you know what i real business is, if you know that we're not usually contemplating their naval, that's not what we're doing. we're usually dealing with the revenue code and all sorts of dumb stuff that only a lawyer could understand and programs get interested in. if the american people saw all of that, they would be educated but they wouldn't see all that. but most of the american people would see would be 30 second, 15 second takeouts from our argument and those takeouts would not be characteristic of
what we do. >> now, what we see is an article in the newspaper that's out of context what you say -- >> that's fine but people read that and say it's an article in the newspaper and the guy maybe lying or he maybe misinformed. but somehow when you see it live, an excerpt pulled out of an entire when you see it live, it has a much greater impact. i am sure if we miseducate the american people -- >> we get the audio at the end of the week. >> >> but the audio is not of interest to the 15 second takeout people. it doesn't have that kind of impact. ñccpw takeouts are not good. we can't have those 15 second sound bites. >> first amendment has nothing to do with whether we have takeouts.
>> i just said that you're a big advocate of the first amendment. >> i am indeed and it doesn't require us to tv our proceedings. >> all right, last question. >> you got to be logical. >> of course. do you like this job and do you ever intend on retiring? >> i'm sure i will retire some day. job doesn't last long. it's only a lifetime job. that's all. >> what will be the trigger for you? did you think you'd stay this long? >> no, i didn't. i thought i'd get out as soon as i could retire at full pension. i've been working for nothing for i guess over ten years. i could have retired. >> you still paid. >> yes, i will get paid just as much if i retire. when i was 65, i could have retired. i'm probably too stupid to have this job at this point.
i don't know what else i will do. i will certainly retire absolutely retire at the time where i perceive that i am not as good as i used to be. i lost a step. i don't want the product of my judicial career to be demeaned by inadequate performance later on >> have you ever asked anybody to tell you when they think you lost a step? >> i have many friends and enemies who will certainly tell me. >> the name of the book is "reading law: the interpretation of legal texts" by antonin scalia and bryan a. garner. thank you very much sir. [captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute]
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>> the internet brings a radical transparency to almost everything it touches. privacy becomes a construct, an artificial construct, a very important one, "created by laws and institutions and enforcements. >> until a few weeks ago rod beckstrom oversaw assigned names and numbers. we will have an inside look at the internet and cyber security on "the communicators" at 8:00 on c-span 2. >> this morning, paul kane looks at the week ahead for congress and then details on the recent survey that shows 13 states cutting medicaid to save money by reducing benefits, tightening elil